Research › Search › Judgment

Madhya Pradesh High Court · body

2005 DIGILAW 316 (MP)

Ashok v. Bank of India.

2005-03-01

S.K.GANGELE

body2005
Judgment ( 1. ) ONE of the defendants filed the present appeal against the order dated 14. 9. 2004 passed by the IInd A. D. J. , Indore in M. J. C. No. 46/2002, rejecting the application filed by the appellant under Order 9 Rule 13 of the Civil Procedure Code for setting aside ex parte judgment and decree dated 25. 10. 1996 passed in Civil Original Suit No. 47-A/1996. ( 2. ) THE respondent No. 1 Bank of India (hereinafter called as the Bank) filed a suit against the appellant, his brother and two other defendants for recovery of money of Rs. 5,44,342,12 with 22. 5% interest from the date of filing of the suit up to execution of the decree. The Bank pleaded that it granted a cash credit (hypothecation) loan to a proprietary firm of Rs. 2,40,000 and gave initial advance of Rs. 30,000 on 8. 7. 1983. The appellant was one of the guarantors of the loan and mortgaged his property, a house in favour of the Bank on 4. 6. 1987. The Bank in para 9 of the plant under the head plaintiffs claim submitted that on 29. 6. 1992 Rs. 3,04,338. 87 were due in cash credit account out of which Rs. 2,24,159. 70 were the interest from 1. 7. 1989, from the above pleadings it is not clear that how much amount was due on account of principal and interest @ 22. 5% from the date of filing of the suit up to execution of decree on whole amount Rs. 5,44,342. 12 including interest. ( 3. ) THE suit was filed by the Bank on 29. 6. 1992 and on 2. 7. 1992 an order was passed sending summons to the defendants, it could not be served to the defendant/appellant, hence on 4. 11. 1992 the Judge ordered again payment of process by registered post as well as ordinary post. On 5. 10. 1993 acknowledgement of registered A. D. , sent to the appellant received by the Court. The appellant did not present on the date i. e. 16. 12. 1983, hence ex pane proceedings were ordered against him by the Court by observing that in spite of service of summon nobody including the defendant was present on the date fixed for hearing of the suit. ( 4. The appellant did not present on the date i. e. 16. 12. 1983, hence ex pane proceedings were ordered against him by the Court by observing that in spite of service of summon nobody including the defendant was present on the date fixed for hearing of the suit. ( 4. ) FINALLY by judgment and decree dated 25th October, 1996 in C. S. No. 47-A/1996 the Trial Court decreed the suit of the Bank by holding that the respondent entitled a decree of Rs. 5,44,342. 12 with interest of 22. 25% quarterly from the date of filing of the suit from the defendants jointly with cost. ( 5. ) ON 3. 3. 1998 the Bank filed execution proceedings before Vth Additional District Judge, Indore with regard to execution of decree passed in C. S. No. 47-A/1996 of total amount of Rs. 18,89,773. 50 against the appellant and other three defendants. After coming into force of R. D. D. B. F. Act, the Act No. 1993, the recovery proceeding transferred to Debts Recovery Tribunal, Jabalpur and it was registered as Execution Case No. 20/2001. The Tribunal issued attachment order of property of the petitioner with regard to total amount of Rs. 35,99,819. 00. Thereafter petitioner filed an application before the District Judge, Indore under Order 9 Rule 13 of the Civil Procedure Code for setting aside of ex parte decree and judgment dated 25. 10. 1996 passed in C. S. No. 47-A/1996. ( 6. ) THE petitioner pleaded that he first time came to know about the ex parte judgment and decree of the suit after the order of attachment of his property passed by the D. R. T. A. Jabalpur on 4. 10. 2001 in execution proceeding No. 20/2001 thereafter he applied for certified copies of the judgment and decree and filed the application on 9. 10. 2001. He submitted that he never received any summon of the aforesaid Civil Suit and prayed selling aside ex parte decree. The Bank opposed the application contending that summons were duly served on the petitioner, he himself signed the acknowledgement in spite of that he did not appear before the Court and Civil Court had no jurisdiction to entertain the application. He submitted that he never received any summon of the aforesaid Civil Suit and prayed selling aside ex parte decree. The Bank opposed the application contending that summons were duly served on the petitioner, he himself signed the acknowledgement in spite of that he did not appear before the Court and Civil Court had no jurisdiction to entertain the application. The petitioner deposed before the Court in support of the application, saying he had not received any summon neither his family members, of the Civil Suit, no other witness examined in the proceedings. The executing Court, held that it had jurisdiction to hear the application and petitioner did not appear before the Court in spite of service of summons and he had knowledge of the Suit proceedings and dismissed his application. ( 7. ) WITH regard to rejection of objection of the Bank by the executing Court vide order dated 7. 12. 2001 about maintainability of application under Order 9 Rule 12 of the Civil Procedure Code, the Bank filed a revision petition before the High Court which was registered as C. R. No. 128/2002, the High Court vide order dated 25th January, 2002 rejected the petition. ( 8. ) THE learned Counsel for the appellant submitted that order of the Court rejecting application under Order 9 Rule 13 of the Civil Procedure Code is bad in law, the Court committed an error of law in holding that summons of Civil Suit were served on the appellant and also against the evidence on record of the case. He relied on 1992 (1) M. P. J. R. 271, 1991 J. L. J. 45, AIR 2001 SC 2497 , JT 2001 (6) SC 55, 2001 (4) SCALE 600 , (2001) 6 SCC 176 , 2001 (2) UJ 1352 (SC ). ( 9. ) THE learned Counsel for the Bank submitted that order impugned is as per law there was valid service of summon on the appellant, he had knowledge about the suit proceedings and deliberately remain absent during the proceedings and filed the application after long delay, after attachment of his property by the Recovery Tribunal. ( 10. ( 9. ) THE learned Counsel for the Bank submitted that order impugned is as per law there was valid service of summon on the appellant, he had knowledge about the suit proceedings and deliberately remain absent during the proceedings and filed the application after long delay, after attachment of his property by the Recovery Tribunal. ( 10. ) IT is clear from the record of the case that on 2/7/1992 an order was passed by the Trial Court in Original C. S. No. 47-A/1996 sending summons to the petitioner and on 4/11/1992 the trial Judge again ordered sending summons by registered post as well as ordinary post with regard to earlier summons. The process server sent it back that he tried to trace the defendant on 4/6. 9. 1992, but his wife was available who told that the petitioner was out of station. With regard to acknowledgement of Regd. A. D. , I have perused the photocopy, it is not mentioned in it when it was served although there is one signature but name is not clear. The petitioner denied the signature of his or his family members in his deposition. The learned Judge observed that the petitioner deliberately evaded the service at first time and second time drawn a presumption on the basis of acknowledgement that it may be signed by his son Annu and earlier he had information because process server told to his wife about the summons. ( 11. ) HOWEVER, it is clear from the provision of Order 9 Rule 6 which is quoted hereunder that Court must satisfy itself with regard to due service of summons: Rule 6. ( 11. ) HOWEVER, it is clear from the provision of Order 9 Rule 6 which is quoted hereunder that Court must satisfy itself with regard to due service of summons: Rule 6. Procedure when only plaintiff appears-- (1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then- When summons duly served-- [ (a) if it is proved that the summons was duly served, the Court may make an order that the suit be heard ex parte]; When summons not duly served-- (b) if it is not proved that the summons was duly served, the Court shall direct a second summons to be issued and served on the defendant; When summons served, but not in due lime.-- (c) if it is proved that the summons were served on the defendant, but not in sufficient lime to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to a future day to be fixed by the Court, arid shall direct notice of such day to be given to the defendant (OR, P); (2) Where it is owing to the plaintiffs default that the summons was not duly served or was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement. ( 12. ) THE Honble Supreme Court in ,, (2002 )3 CALLT77 (SC ), JT2002 (4 ) SC 489 , (2002 )3 MLJ35 (SC ), (2002 )5 SCC377 , [2002 ]3 SCR352 , 2002 (1 )UJ773 (SC ), Sushil Kumar Sabharwal v. Gurpreet Singh and Ors. held as under with regard to due service before proceeding ex parte. Order 9 Rule 6, CPC contemplates three situations when on a date fixed for hearing the plaintiff appears and the defendant does not appear and three courses to be followed by the Court depending on the given situation. The three situations are (i) when summons duly served, (ii) when summons not duly served, and (iii) when summons served but not in due time. In the first situation, which is relevant here, when it is proved that the summons were duly served, the Court may make an order that the suit be heard ex parte. The three situations are (i) when summons duly served, (ii) when summons not duly served, and (iii) when summons served but not in due time. In the first situation, which is relevant here, when it is proved that the summons were duly served, the Court may make an order that the suit be heard ex parte. The provision casts an obligation on the Court and simultaneously invokes a call to the conscience of the Court: to feel satisfied in the sense of being "proved" that the summons was duly served when and when alone, the Court is conferred with a discretion to make an order that the suit be heard ex parte. The date appointed for hearing in the suit for which the defendant is summoned to appear is a significant date of hearing requiring a conscious application of mind on the part of the Court to satisfy itself on the service of summons. Any default or casual approach on the part of the Court may result in depriving ,a person of his valuable right to participate in the hearing and may result in a defendant suffering an ex parte decree or proceedings in the suit wherein he was deprived of a hearing for no fault of his. (Para 12) In view of the second proviso to Rule 13 of Order 9, CPC (added by the 1976 Amendment), it is the knowledge of the "date of hearing" and not the knowledge of "pendency of suit" which is relevant for the purpose of the proviso above said. On the basis of the defendant-appellants admission in the plaint that he was aware of the pendency of the suit, the High Court erred in taking the view that even if the summons were not duly served, the appellant was aware of the pendency of the suit and, therefore, the application under Order 9 Rule 13 of the CPC did not have any merit. (Paras 11 and 10) ( 13. ) ON the basis of the above principle of law it cannot be held which is clear from the finding by the Trial Court that summons were duly served on the petitioner. The Court committed error of law drawing presumption of service, The argument of learned Counsel for the respondent Bank Mr. (Paras 11 and 10) ( 13. ) ON the basis of the above principle of law it cannot be held which is clear from the finding by the Trial Court that summons were duly served on the petitioner. The Court committed error of law drawing presumption of service, The argument of learned Counsel for the respondent Bank Mr. Nair that under Section 27 of General Clauses Act a presumption has to be drawn with regard to service until a contrary is proved cannot be accepted, because it cannot be ascertained that who had signed the acknowledgement. ( 14. ) THE matter has to be seen from other side also as there is no mention in the plaint filed by the Bank with regard to recovery of amount. That how much amount was and/or loan and interest separately. It included interest in amount of Rs. 5,44,342. 16 for decree and accordingly it was granted to it by the Trial Court with interest of 22. 5%. On inquiry the learned Counsel for the Bank informed that unpaid loan amount was 2,40,000/- on the date of filing the suit i. e. 29. 6. 1992 and warrant for attachment of property was for Rs. 35,99,819/ and at present the total amount has become more than 55 lakhs. At no stretch of imagination it could be presumed that amount of Rs. 2. 40 lakh would become 55 lakhs, near about 22 times, within 12 years. Hence it is clear from the above facts that rights of the petitioner adversely affected by the ex parte judgment and decree but the Trial Court did not consider the above fact in refusing to set aside the ex parte decree and mechanically passed the impugned order: ( 15. ) THE Honble Supreme Court held as under with regard to setting aside ex parte decree M. K. Prasad v. P. Arumugam Reported in, AIR 2001 SC 2497 , JT 2001 (6) SC 55, 2001 (4) SCALE 600 , (2001) 6 SCC 176 , 2001 (2) UJ 1352 (SC ). ) THE Honble Supreme Court held as under with regard to setting aside ex parte decree M. K. Prasad v. P. Arumugam Reported in, AIR 2001 SC 2497 , JT 2001 (6) SC 55, 2001 (4) SCALE 600 , (2001) 6 SCC 176 , 2001 (2) UJ 1352 (SC ). Again in State of West Bengal v. Administrator, Howrah Municipality, AIR 1972 SC 749 , (1972) 1 SCC 366 , [1972] 2 SCR 874a, 1972 (4) UJ 449 (SC) and G. Ramegowda, Major v. Special Land Acquisition Office, Bangalore, AIR 1988 SC 897 , JT 1988 (1) SC 524, 1988 (1) SCALE 479 , (1988) 2 SCC 142 , [1988] 3 SCR 198, 1988 (1) UJ 666 (SC), this Court observed that the expression "sufficient cause" in Section 5 of the Limitation Act must receive a liberal construction so as to advance substantial justice and generally delays be condoned in the interest of justice where gross negligence or deliberate inaction or lack of bona fide is not imputable to the party seeking condonation of delay. Law of limitation has been enacted to serve the interests of justice and not to defeat it. Again in N. Balakrishnan v. M. Krishnamurthy, 1998 VI AD (SC) 465, AIR 1998 SC 3222 , (1999) 1 CALLT 51 (SC), 1998 (2) CTC 533, JT 1998 (6) SC 242, (1999) I MLJ 114 (SC), (1999) 121 PLR 462, RLW 1999 (1) SC 107, 1998 (5) SCALE 105 , (1998) 7 SCC 123 , [1998] Supp1 SCR 403, this Court held that acceptability of explanation for the delay is the sole criterion and length of delay is not relevant. In the absence of anything showing mala fide or deliberate delay as a dilatory tactics, the Court should normally condone the delay. However, in such a case the Court should also keep in mind the constant litigation expenses incurred or to be incurred by the opposite party and should compensate him accordingly. In that context the Court observed (para 9 of AIR)- "it is axiomatic that condonation of delay is matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the Court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arb ary or perverse. But it is a different matter when the first Court refused to condone the delay. In such cases, the superior Court would be free to consider the cause shown for the delay afresh and it is open to such superior Court to come to its own finding even untrammelled by the conclusion of the lower Court. " (Para 8) In the instant case, the appellant tried to explain the delay in filing the application for setting aside the ex parte decrees, is evident from his application filed under Section 5 of the Limitation Act accompanied by his own affidavit. Even though the appellant appears not to be as vigilant as he ought to have been, yet his conduct does not, on the whole, warrant to castigate him as an irresponsible litigant. He should have been more vigilant but on his failure to adopt such extra vigilance should not have been made a ground for ousting him from the litigation with respect to the property, concededly to be valuable. While deciding the application for setting aside the ex parte decree, the Court should have kept in mind the judgment impugned, the extent of the property involved and the stake of the parties. We are of the opinion that the inconvenience caused to the respondent for the delay on account of the appellant being absent from the Court in this case can be compensated by awarding appropriate and exemplary costs. In the interests of justice and under the peculiar circumstances of the case we set aside the order impugned and condone the delay in filing the application for setting aside ex parte decree. In the interests of justice and under the peculiar circumstances of the case we set aside the order impugned and condone the delay in filing the application for setting aside ex parte decree. To avoid further delay, we have examined the merits of the main application and feel that sufficient grounds exist for setting aside the ex parte decree as well. (Para 9) ( 16. ) ON the basis of above principle of law, facts and circumstances of the case, the appeal of the appellant is allowed, the ex parte judgment and decree dated 25. 10. 1996 passed in Civil Original Suit No. 47-A/96 is hereby set aside with a cost of Rs. 50,000/- is to be paid by the appellant to the respondent Batik. The Trial Court is directed to decide the suit preferably within six months from the date of receipt of the order. The attachment of the property of the petitioner shall continue during the suit proceedings. Parties are directed to bear their own cost.